"Do you like to stick a big ol' promotion into your order confirmations or CRM follow-ups to upsell or cross-sell customers? You might think those are transactional emails, and thus exempt from CAN-SPAM, but the Federal Trade Commission isn't so sure.

The FTC today dropped another shoe on its way to implementing CAN-SPAM: It just opened another comments session (open through September 13, 2004), this time on its definitions of what constitute's an email's "primary purpose."

This is a pretty key stage in the rulemaking process, because email whose primary purpose it defines as commercial has to comply with CAN-SPAM. Transactional and informational ones don't.

Here's what the FTC is considering:

What it boils down to is this: If an email message looks commercial, then it is, either by what you put in the subject line or how prominently you feature ads or promos -- your own or a paid advertiser's -- in your content.

In other words, if you send an order-confirmation email that features an upselling promo in the subject line or is the first thing somebody sees when opening the message, that could make your email commercial, not transactional or relationship-focused.

1. Any message is commercial if it only advertises or promotes a product or service, either in the subject line ("15% Off If You Act Today!") or in the message body.

2. An email message that has both commecial content and a transactional/relationship message (subscription or order confirmation, customer service follow-up, etc.) is commercial if you put the promo in the subject line or if it's the first think somebody sees after opening the message.

3. Email messages that mix promotional content, such as your own house ads or third-party ads, with informational content, as in an email newsletter, are commercial if they give the ads top billing in the subject line or message body, especially if you give the ads more real estate, color or graphics to make them stand out from the text.

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